THE TOOTH FAIRY STORY AND OTHER TIMES TO BITE YOUR TONGUE - NON-DISPARAGEMENT CLAUSES

By Jennifer Paine of Pinnacle Family Law on Monday, September 18, 2017.

They had five teeth between them, in a sandwich bag tucked amid sweatshirts and socks. Mom always sent them with extra, even in the summertime, as if Dad hadn't enough. He did. What's that? he said, tugging at the bag. The teeth jingled. Mommy says the Tooth Fairy won't come to her house because she's too poor, they replied, yanking the bag out and plopping it on the bedroom pillows. She said we should bring these to your house because the Tooth Fairy likes people with money.

Will was so upset when he told me this story, his face turned red and he started drumming his fingers pointedly against my desk. The pens clanked. What did you say? I asked.

The temptation: Your mother's a no-good-sunnuva . . . a liar and a cheapskate.

The reality: I didn't say anything.

Good. There's a war of words waging between exes, sometimes subtle like the Tooth Fairy story, sometimes blatant and yelling loud as can be. They fight over school, sports, new girlfriends and boyfriends, stepmoms and stepdads, who pays what share for summer camp, whether McDonald's is dinner or a treat, everything under the sun and then some. It is so, so easy to snap back. But that old adage You better bite your tongue is never truer. What you say will come back to against you. And your children.

You should consider a non-disparagement clause instead.

What is a non-disparagement clause?

What's to stop your ex from stringing a line of slur words in front of your name? More than most non-lawyers think. Under the circumstances, you may have an action for defamation, libel or slander. These are lawsuits for defaming your name without justification in written or spoken communication. However, unless the circumstances are particularly devastating (e.g., your ex spread so many rumors about you not a boss in your town or the next five will hire you), or you are willing to pay a lawyer a pretty penny just for the cause, these lawsuits are unhelpful tools for solving the problem. They cost more than they are worth, and they do not modify your custody order for your children. Instead, for child custody cases, one of the most helpful legal tools is the non-disparagement clause.

A non-disparagement clause is a clause in a custody order that requires each parent to refrain from disparaging the other parent in their child's presence. In other words, whenever the child is around, neither parent can say something that might impair the child's relationship with and regard for the other parent. For example, neither parent could say something like, "Your father is a no-good-rotten-little . . ." or "Your mother doesn't care what time you get home because she's too busy with her boyfriend." The purposes for this clause are many - to encourage the child's relationship with both parents, see, e.g., MCL 722.27a, to keep the parents' personal squabbles between them, not between them with their child stuck in the middle, to give each parent a sense of security the other is not planting seeds of hatred during parenting time (e.g., "You don't want to go to Daddy's house anymore, do you?") are a few examples. The theory is, without those nasty comments, the child and the parent are more likely to bond, free from the other parent's personal anger.

What does a non-disparagement clause look like?

Non-disparagement clauses are as varied as the attorneys writing them and the families needing them. At a minimum, they must be sufficiently clear to apprise each parent of what conduct is not allowed, but you can otherwise be creative with yours.

A general non-disparagement clause might go something like this:

"Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child's high regard for the other party."

But what if you and your ex-spouse rely heavily on electronic communication, e-mails or texts?:

"Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child's high regard for the other party. This means, for example and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child's high regard for the other party. "

And what if your ex-spouse despises your new spouse?:

"Each party shall take all measures deemed advisable to foster a feeling of affection between the child and the other party. Neither party shall say or do anything that may estrange the child from the other party or impair the child's high regard for the other party. This means, for example and not by way of limitation, neither party shall say or do anything about or toward a third party in the child's presence that may estrange the child from the other party or impair the child's high regard for the other party. "

Be sure to discuss any language with an attorney before you include it in your decree. You must understand it, your soon-to-be-ex must understand it, and it must withstand all of the what-ifs. A big what-if is the judge who will accept your decree. You must be sufficiently vague to pass judicial scrutiny (no crazy clauses about having to pass a purple pencil to the person entitled to speak, as if you were in student government again, and certainly no illegal clauses) but sufficiently clear to know what you and your ex should not do and when methods of enforcement you can pursue.

Enforce how? Will you have to make like 007 and carry a hidden microphone, desperate to catch your ex in a disparaging rant? No, most of the time.

Before you record any conversation, discuss your reasons with an attorney, thoroughly, or you could commit a crime. Federal and state laws prohibit surprisingly more surveillance than most people think. For example, the Federal Wiretapping Act (FWA) prohibits most methods for recording conversations. The pertinent part of the FWA is 18 USC § 2511(1), which provides that violations occur when one:

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when-- (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or (ii) such device transmits communications by radio, or interferes with the transmission of such communication; or (iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce.

The FWA does contain an important exception commonly known as "the consent exception" or "the participant rule." According to 18 USC § 2511, it is not unlawful under the FWA for most of us to intercept a wire, oral, or electronic communication if we are a party to the communication or where one of the parties to the communication has given us prior consent to the interception.

State privacy laws also may apply, however, and you could run afoul of them if you record conversations.

Therefore, unless absolutely necessary, and then only after discussing it with an attorney, avoid recording conversations with your ex. Instead, bring a trusty witness who can testify, credibly, that your ex said this, that or the other thing disparaging about you. Be sure to keep a journal of disparaging remarks, too. This will help you track their frequency and severity, and it will refresh your memory if you pursue court action. An isolated remark one stressful day is probably not enough for court action, but a series of remarks traced in your journal, or one grave remark on a special day, may be.

Most of all, do not be afraid to take court action. Non-disparagement clauses are court orders designed to preserve your relationship with your children. The powers of contempt of court support them, and they support one of the most important constitutional rights in the United States: our rights to our children. Consider these enforcement options:

Motion to Clarify: Lofty non-disparagement clauses can be ambiguous. Attorneys have a habit of using more words than necessary (e.g., "You shall not say, utter, speak, indicate . . .") particularly when they have to write a clause pleasing to everybody. For example, does "Do not disparage the other party or the party's decisions" include a second wife an ex-husband decides to marry or just the decision to remarry? If your clause is ambiguous, ask your court to clarify it. A motion to clarify asks the court to interpret what a clause meant when issued, according to the circumstances at that time. That is, what did the clause mean on the date the court granted the divorce? What did the court and the parties contemplate at that time? If you are certain that your interpretation is correct, try this motion.

Motion to Modify: What if your interpretation of the clause is incorrect? Ask your court to modify it. A motion to modify asks the court to change a clause based on circumstances that have occurred since the court issued the decree. Each jurisdiction uses a threshold, or standard, to prevent parents from coming to court repeatedly for modifications. In general, there must be a "change in circumstances" or "proper cause" since the decree before the court will consider a modification. However, if you couch the motion as a motion to modify a term, rather than a motion to modify custody, you might avoid this threshold. In most jurisdictions, terms, like non-disparagement clauses, should change as the child's interests and the parents' needs change.

Motion for Contempt: If your ex does disregard your clause, ask the court to compel her action and to hold her in contempt for not acting before. A motion to compel asks the court to bring the opposing party before the court to explain why he or she disregards the court's orders and to impose an appropriate remedy, which may include an order requiring action, contempt sanctions, fines, jail-time, costs attorney fees, family therapy or loss of parenting time.

Most of all, do not snap an angry or curse-laden or crazy or otherwise curt comment back. Stoop to that disparaging level, and you could be the one in contempt. Better to keep your children's parenting time and bite your tongue.

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